Posted at 12.13.2018
Crime is thought as an work that regulations makes punishable and is categorised as an offense. It really is an offense against the public, as compared to a tort, which is a wrongdoing against a person and gives rise for an action for damage. Crimes produce two types of injury: Sociable and Personal. Community injury concerns the State which is fixed through the imposition of penalty prescribed by law, and Personal personal injury pertains to the offended get together and it is restored by indemnification which is civil in character. It is specifically because of the deleterious effects that the state of hawaii is empowered to make penal laws and regulations and compel its visitors to follow them in order to maintain serenity.
Crime has been in existence for a long period, although it was not called as a result. In the Bible, Adam and Eve disobeyed god, the father by consuming the berry of the tree of knowledge despite an express prohibition to do so. Some may regard what they did as a criminal offenses, although against a different being. Biblical passages within the first five literature of the bible, collectively called Torah, have described the principle of "an vision for an vision" as basis of the imposition of charges.
The first codified set of crimes or offenses with related consequence was the Code of Ur-Nammu dating back in 2050 BC. It was written in the Sumerian dialect and included a list of prohibited acts using their corresponding penalty if violated. The Code experienced procedures on dismissal predicated on corruption, coverage of the indegent, and significantly, a system of punishment wherein the abuse for the criminal offense committed is reasonable. Its name, Ur-Nammu's Code, is truly a misnomer, because historians are of the judgment that his boy, Shugli, is the genuine writer of the Code.
In 1700 BC the Babylonian Ruler, Hammurabi developed a code of laws with the process, lex talionis (which literally means the law of retaliation), which was called the Hammurabi's Code. This process enshrined in early laws, simply means that the offended get together may go back the same offending action to the origin of such take action. For instance a person from one tribe kills a member of another tribe; regulations allows the imposition of the same and identical charges to the offending get together, which means the offender shall be put to death. Lex talionis embodies the theory of exact retaliation. The charges for the violation of the code was cruel, barbaric and inhumane. Theft was punished by slicing off a finger or the hand. The tongue was cut off when a person commits defamation. The judiciary is going by an individual or several persons deciding on an instance, not on merit or law, but based on customs and custom. In some instances, an accused was designed to dive in the River Euphrates to learn if he is innocent or not. In the event the offender floats, it means he is innocent, therefore, he helps to keep his house and the accuser is put to fatality. However, if he drowns, it means that he's guilty and the accuser gets his house.
In Old Greece, the penal legislation is referred to as being "draconian, " derived from Draco, the first Greek legislator. Laws and regulations were designated to be merciless. Capital abuse or death was imposed for offences, even for modest offenses. Ancient Rome had offered a more systematic system than Old Greece. However, the basis of penalty continued to be to be retribution and it was made incumbent after the victim's family to serve such abuse.
A system of government was already in position prior to the Spaniard conquered the Philippines in 1565. It was called "barangay" which came from the Malay term "balangay" which in turn meant vessel. Why it was called so is not clear, however, some historians opine that:
"It might be inferred that the seafaring Filipinos, to give name with their nostalgic stories as they sailed in the high seas into the Philippine archipelago, known as their villages after boats which brought them safely over the seas until they come to the Philippine Islands. "
The Datu was the head of the barangay. If the community was bigger, their market leaders were called Rajahs. The Datu exercised Exec, Legislative and Judicial forces. Like today, both Mouth and Written Regulations existed. Historians experienced generally arranged, that the first codified set of laws in the Philippines is the Code of Kalantiyaw going out with back again from 1433, compiled by Datu Kalantiyaw. Instead of the word rules, it contains the following orders:
"First Order. Ye shall not get rid of; neither shall ye do injury to the aged; lest ye incur the threat of death. Those who disobey will be condemned to loss of life when you are drowned in the river or located in boiling water.
Second Order: Ye shall follow; let your entire debts with the chief be found punctually. He who does not obey shall get for the first a hundred lashes. If the debt is large, he will be condemned to thrust his hand in thrice into boiling water. For the second time, he will be condemned to be beaten to fatality.
Third Order. Ye shall follow; let no one have women that are incredibly young nor more than he can support; nor be given to unnecessary lust. He who shall not follow this order will be condemned to swim for three time for the first time, and for the second time, he shall be lacerated with thorns.
Fourth Order. Observe and obey; let no one disturb the private of the graves. When moving by the caves and trees where they are really, give respect to them. He would you not see this shall be wiped out by ants, or beaten to loss of life with thorns.
Fifth Order. You shall obey; he who exchanges for food, allow it be always done in accordance with his expression. He who does not comply, will be beaten for just one hour, he who repeats the offense shall be open for just one day among ants.
Sixth Order. You will be appreciated to revere places that are performed in respect, such as those of trees of recognized well worth and other places. He who fails to comply shall pay with one month's work in yellow metal or in honey.
Seventh Order. These shall be put to fatality; he who kills trees of venerable appearance; who capture arrows during the night at old women and men; he who gets into the properties of the headmen without agreement; he who eliminates a shark or a streaked cayman.
Eighth Order. Slavery for a doam (a certain time frame) will be endured by those who take away the ladies of the headmen; by him who keep ill-tempered dogs that bite the headmen; by him who uses up the domains of another.
Ninth Order. All these will be beaten for just two times: who sing while traveling by night; eliminate the Manaul; tear the documents owned by the headmen; are harmful liars; or who mock the deceased.
Tenth Order. It really is decreed an obligation; that every mother instruct secretly to her daughters matters regarding lust and prepare them for womanhood; let not men be cruel nor punish their women when they get them in the work of adultery. Whoever shall disobey shall be killed by being cut to parts and tossed to the caymans.
Eleventh Order. These shall be burnt: who by their durability or cunning have mocked at and escaped consequence or who have killed young kids; or make an effort to steal away the ladies of the elders.
Twelfth Order. These shall be drowned: all who interfere with their superiors, or their owners or masters; all those who abuse themselves through their lust; those who kill their anitos (spiritual icons) by breaking them or tossing them down.
Thirteenth Order. All these shall be subjected to ants for half a day: who destroy black cats during a new moon; or grab anything from the chiefs or agorangs, however small the thing may be.
Fourteenth Order. These shall be made slave forever: who've beautiful daughters and refuse those to the sons of chiefs, and with bad trust conceal them away.
Fifteenth Order. Involving beliefs and practices; these shall be beaten: who eat the diseased flesh of beasts that they hold according, or the natural herb which they consider good, who wound or destroy the young of theManaul, or the white monkey.
Sixteenth Order. The hands shall be cut-off: of all those who break anitos of timber and clay in their alangans and temples; of these who kill the daggers of the catalonans(priest/priestess), or break the drinking jars of the second option.
Seventeenth Order. These will be killed: who profane sites where anitos are kept, and sites where are buried the sacred things of their diwatas and headmen. He who executes his requirements in those places shall be burned.
Eighteenth Order. Those that do not cause these rules to be obeyed: if they're headmen, they shall be put to death by being stoned and smashed; and if they're agorangs they will be placed in streams to be eaten by sharks and caymans.
Despite Historians' idea that the Kalantiyaw was the first codified set of regulations in the Philippines, in 1968, William Henry Scott, demonstrated that it was a forgery actually made in the 20th Century. However, such truth notwithstanding, there's a consensus included in this that the ancient penal laws were similar from what was allegedly compiled by Kalantiyaw, if not similar, cruel, inhumane and barbaric. Charges was disproportionate to the criminal offense committed. Disputes, whether criminal or civil, were settled either by the top of the barangay, the council of elders or through arbitration. The historical basic principle of lex talionis, which acquired a very slim definition of, "an eyesight for an eye, " was very much alive in the early record of the Philippines, very much like in the other areas of the world at that time.
Being a colony of Spain for more than three hundred years, the regulations of the Philippines are mixture of common and civil laws, which were a product of the prolonged period within which the country was under the Spanish regime. Political and commercial regulations follow a common rules route, and, civil and criminal laws and regulations, follow the civil regulation.
Although long before the Spaniards came up, the Philippines possessed a judiciary, headed by the datu, it was the conquerors who gave as an arranged system. The Royal Audencia was set up to function as the Supreme Judge through the Spanish Colonization of the Philippines, which possessed the power to settle controversies, and to check the abuses of the Governor Basic in the Philippines. On the side of the law, the Spanish Codigo Penal was long to the Philippines by virtue of Royal Decree of 1870. This is eventually replaced with the Spanish Penal Code of 1848, by the Comision Codificadora de las Provincias de Ultramar, which was put in place by Spanish authorities, and took impact in the Philippines in July 14, 1876. The Spanish Penal Code included two important enhancements, which our old penal system did not have: incarceration, as a form of consequence, and parole, as a form of reward for good behaviour while incarcerated.
Incarceration or imprisonment is the most relevant technology that the Spanish colonizers released inside our penal system. It had been used to detain a person under suspicion of committing a criminal offenses, and punish, incapacitate the offender, deter from committing an criminal offense or rehabilitate him, after conviction. Incarceration replaced the barbaric and inhumane fines of olden times. The capital punishment, however, remained in the penal system, but was reserved for the most gruesome offences, such as murder.
The Spanish Penal Code remained in effect during the American colonization of the Philippines. However, viewing the necessity for penal regulation change, authorities shaped a Committee on Revision, the principal function of which was to revise the Penal Code set up by the Spaniards. The 1927 Commission payment on Revision headed by Anacleto Diaz, Quintin PAredes, Guilermo Guevara, Alex Reyes and Mariano de Joya, as people. The Committee based the modified code on the Spanish Penal Code of 1848. On December 8, 1930, Work No. 3815 or the Modified Penal Code of the Philippines took result; however, it didn't undergo important change of orientation or structure. The Revised Penal Code stay in result today, with considerably the same set of offences and same fines, as the Spanish Penal Code of 1870.
Punishment can be an allowed and a desired form of cultural control, so long as it complies with the essential limitations provided for by municipal laws and relevant international regulations. It is permitted to be imposed to preserve sociable order, which presents that express of peacefulness and tranquillity, where "individuals and groupings are commensurate with the overall design, financing predictability to communal establishments. " More, significantly punishment is imposed to attain justice.
Ancient civilizations have established their idea of justice, primarily, on vengeance, retribution, and settlement. Abuse must be add up to the offense committed, such that if a person eliminates another, he will be put to fatality as consequence for his crime.
Punishment is imposed for various reasons, such as: to avenge the wrong doing from the offender, to instil fear in charges if an offense is committed, to incapacitate the offender by keeping him detained so that he'll not do any longer crimes and, finally, to reform the offender by individualizing his penalty which will, preferably, lead to rehabilitation. They are the four philosophies of Abuse: Retribution, Deterrence, Incapacitation and Treatment, respectively. In most parts of the globe, retribution is the primary justification in imposing penalties. However, with the increasing respect for human being dignity, restorative justice is increasing speed.
Following the Enlightenment period, the value of human being dignity surfaced. Immanuel Kant experienced said that not everything must be determined by value, dignity he says is the "absolute
inner value. " The rising importance and awareness of human dignity resulted in the reduced amount of severe punishment infliction and paved method for the newer systems of consequence such as incarceration and payment of fines for most small offenses.
The new millennium caused divergent views on criminology. German philosopher Frederick Nietzsche in his book, The Labor and birth of Tragedy, said, "Man's highest good must be bought with a criminal offenses and payed for by the overflow of grief and anguish which the offended divinities visit after the people in its noble ambition. "
Following the climb of criminology, many different views on punishment and its bases arose. Within the 20th century, French philosopher and historian, Michel Foucault in his publication, Discipline and Punish, made a report of criminalization or abuse as a coercive method of express control. He said that we now have two types of consequence: Monarchical and Disciplinary. He said in his work that the purpose of charges was an indefinite one, "the problematization of the unlawful behind his criminal offenses, the nervous about a punishment that is clearly a correction, a therapy, a normalization, the division of the take action of judgement between various regulators that are supposed to measure, assess, diagnose, get rid of, transform individuals. " Regarding to Focault, this more modern concept of charges being truly a form of modification is one of the bases of charges.
In contemporary times, punishment is said to be imposed for the purposes of: Retribution, Deterrence, Incapacitation and Rehabilitation.
Retribution has gone a long from its historical and very slim classification of "an eye for an vision. " Such concept had since then evolved to signify, proportionality of the charges to the gravity of the offense determined. The imposition of punishment is also seen as a deterrence in committing crimes. It is assumed that by imposing a charges for a wrongdoing, other people will not be committing crimes because of concern with having to suffer from punishment. Incapacitation, on the other hands, means lessening the likelihood of the offender perpetrating an offense and that means you commit him within an institution. Lastly, rehabilitation is said to be one of the rationale behind the imposition of charges. By treatment it is meant that punishment can be used as an opportunity to make some positive change in the offender.
Amongst the four philosophies behind the imposition of punishment, retribution is the most frequent justification in the imposition of charges. Most the countries on earth adhere, generally, to retributive justice, like the Philippines, wherein retributive justice is typical. However, credited to increasing concern for human dignity, restorative justice is gathering popularity. In fact the present Constitution recognizes the necessity to preserve human dignity, thus:
"Section 11. THE STATE OF HAWAII principles the dignity of every human person
and promises full value for human protection under the law. "
The Philippines has, also, honored such principle, imminent from its more recent legislation such as the Juvenile Justice and Welfare Function of 2006, which explicitly provided for restorative justice principle.
The imposition of abuse is as a result of the mandate in the constitution which gives:
"Section 5. The maintenance of tranquility and order, the coverage of life, liberty, and property, and campaign of the general welfare are crucial for the entertainment by all the folks of the blessings of democracy. "
In order to keep up peace and order within the place, their state is empowered to make regulations. However, such power is not unbridled because the Constitution itself provides for a proscription on the imposition of cruel and strange penalties, increased fines and passage of an ex-post facto regulation. Precisely the same proscriptions are mirrored in the US Common Declaration on Man Privileges, International Covenant on Civil and Political Protection under the law, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Consequence, to that your Philippines adhere to.
Retributive justice vis-a-vis Restorative justice
Retributive justice has been the primary justification of imposing abuse in most countries. It pertains to the old adage "allow punishment fit the crime" made popular by Cesario Beccaria or to the more popular "an vision for an vision, " the prominent principle during the old times. Retributive Justice deals with proportionality of the offense to the charges to be enforced upon an offender.
Restorative Justice, on the other hands, deals with individualizing the penalty given to a wrongdoer, keeping in mind that something must be achieved for the offender in order to reform him and keep him from doing offences and effectively reintegrate him to society. Rehabilitation, reformation and reintegration are basic premises. The increasing interest on Restorative justice is brought about by the increased valuation and admiration for real human dignity.
The fundamental idea in a retributive paradigm is the fact crimes are accidental injuries against the talk about, while restorative justice stresses that crimes tend to be than offenses against the state, but primarily are violations against people and romantic relationships. Inside the retributive model, a conviction of blame and supervision of blame is involved. Alternatively, in restorative justice, the interested gatherings, specifically the offender, offended party and the city, action, reconciliation and reassurance.
In retributive system, determination about whether a criminal offenses was determined, who did it and how should he be punished will be the basic questions. It targets the offender and the offense that was determined and the penalty that the state of hawaii must impose. Likewise, restorative justice is concerned with accountability, albeit mostly to the offended party and the city, and not to the state of hawaii.
Statement of the Problem
Between the Retributive justice key points and Restorative justice paradigm, which is better fitted to the Philippines? Furthermore in keeping with the overall welfare? Which between retributive and restorative justice effectively addresses the worthiness of individual dignity despite it being truly a punishment? Therefore, will the new paradigm work, if there is indeed a switch from retributive paradigm to restorative justice?
II. Aims of the Study
The objective of the analysis is to re-examine the retributive justice theory as the primary justification of imposing charges, in light of the constitutional responsibility of the state of hawaii in affording the utmost respect for human dignity and human rights.
Also, this study seeks to determine, by evaluating their worth and key points, which between Retributive Justice and Restorative Justice is a better fit, as basis of imposing charges, in light of the constitutional provisions as well as international musical instruments to that your Philippines is a signatory.
Lastly, to look for the effectivity of using Restorative Justice, as basis of penalty, by analyzing countries which have adapted its rules.
III. Significance of the Study
The re-examination of the philosophies of abuse embodied in our penal regulations will determine whether the current legal construction complies with the changes in the relevant lawful restrictions which it is dependent upon.
Upon the determination of conformity or non-compliance, necessary penal regulation reforms may be recommended to best comply with the changes.
IV. Scope and Limitations
The study will target only on Retributive and Restorative Justice key points, concerning criminal matters only.
The research will focus on the 1987 Constitution, specifically the procedures on the work of their state to maintain serenity and order, value real human dignity and proscription on cruel and strange penalties and extreme an only and many fines, applicable penal laws, such as: the Revised Penal Code, the Fatality Penalty Legislation, Indeterminate Sentence Law, Probation Legislation and Juvenile Justice and Welfare Take action, respectively.
The study will employ Supreme Court docket decisions, pronouncements that have touch upon Retributive and Restorative principles.
To better understand the development of Retributive and Restorative justice, the use of international materials, American jurisprudence and International laws and regulations shall be thoroughly used.
Non-legal books and other research materials were utilised.
V. Strategy/Organization of Thesis
The proponent mostly used the catalogue in the Ateneo Professional Schools, the Rizal Catalogue in the Loyola Schools, as well as that of the Miguel de Benavides Library of the University of Santo Tomas in Manila. Materials from the web were also used, as well as Academic Papers, Journals and legislative documents or paperwork. Interview with a reputable authority in Offender legislation was also conducted.
This thesis shall be prepared by chapters.
The first section will be the introductory section, which provides the background, objectives and need for the study, the range and restrictions, and the technique or the business of the thesis. The backdrop provides a quick dialogue of the factual milieu of the analysis, which is performed by giving a historical track record and the existing state of things. The aims and relevance will catalogue the actual proponent seeks to achieve and what impact it'll bring to the modern culture. The constraints will established the constraints and applicability of the analysis.
The second chapter is fully specialized in the purpose, opportunity, limitations, and resources of Criminal Legislation in the Philippines. A conversation of crime, punishment and the Revised Penal Code was also done.
The third section contains an in depth talk of the Retributive Justice Paradigm.
The fourth section contains an study of the Restorative Justice School of thought.
The fifth chapter contains the examination of the author, after considering the relevant laws, international equipment and other materials documents.
Finally, section six contains the author's summary and suggestion.
VI. Explanation of Terms
As found in the study, the next shall mean:
a. Code: when found in a sentence shall pertain to the Revised Penal Code.
b. Crime: for the purposes of the discussion, crimes shall be used synonymously with felony or criminal offense.
c. Felony: for the purposes of the dialogue, felonies will be used synonymously with offense or crime.
d. Law: when used in a sentence, it shall pertain to the Revised Penal Code.
e. Criminal offense: for the purposes of the talk, offenses shall be used synonymously with felony or crime.